The 20th Conference of the Parties (COP20) to the United Nations Framework Convention on Climate Change (UNFCCC) that was held in Lima, Peru during the first two weeks of December 2014 was never intended to be a break-through Summit. It was merely hoped that it would keep States on track for the new agreement that they had agreed to conclude at COP21 in Paris, France in December of 2015. The new agreement was to build on the UNFCCC, applying the agreed principles and commitments in the former and strengthening the emissions limitations commitments that States had agreed to in the Kyoto Protocol and the 2012-2020 bridging agreement that had been agreed at COP18 in Doha, Qatar.

Crucial to building a new agreement anchored in already agreed principles and improved ambition is the principle of common but differentiated responsibilities. This principle, properly applied, enables developing countries to continue to develop and places a responsibility commensurate to their historical overexploitation of the planet’s atmosphere on developed countries. It is a principle of fairness and justice. It is the legal principle that is the foundation of the UNFCCC.

Before COP20, with little attention to this principle, however, the UNFCCC Executive Director in her remarks for months, the UN Secretary-General at his High Level Climate Summit on 23 September, and several optimistic delegates predicted some break through success in the negotiations. Instead, in the aftermath of COP20 we are left picking up the pieces after yet another failed attempt to take the action that the science and existing international law tell us is necessary to deal adequately with climate change. Below this piece examines some of the reasons why this was the case.

A New Agreement: Paris2015 text

The main task of COP20 was to provide more form to the new agreement that was to reach by the end of next year. This was to be done in two steps. First, a COP decision was to be agreed that would be a roadmap for getting to an adequately ambitious agreement in Paris in 2015 based on the Adhoc Durban Programme (ADP). Second, progress was suppose to be made in shaping the elements of a text into the text of an agreement (Paris2015 text). In addition, progress was to be made on operationalizing the Warsaw Loss and Damage Mechanism, on finance, and on a process for increasing ambition. Despite the apparent optimism most participants knew that any progress would be difficult, if not impossible.

One stumbling block that had been addressed at COP19 in Warsaw was the whether or not the new agreement would replace the UNFCCC. After some heated discussions States had agreed that they where working to draft a new agreement under the UNFCCC. This meant that any action taken at COP20 would need to be consistent with the UNFCCC, its objective, principles and commitments. As a treaty that has been ratified by more States than the Charter of the United Nations, one may have thought that this understanding would be obvious.

During the first week of COP20 scant progress was made on elaborating the elements of the Paris2015 text. In most instances, the progress was aimed at clarifying the positions of the State parties, broadly divided by developing and developing countries and their allies. States from each block proposed alternative text for the different components of the treaty. In fact, they proposed alternative texts for almost every substantive article of the treaty. This created a list of alternative proposals pointing in very different directions. For example, developed countries saw the burden of addressing the adverse effects of climate change as a shared responsibility of all States. Developing countries, however, objected. They pointed out that to share the burden equally after it had been caused by the developed countries was unfair. To do so, they said would keep them impoverished. There was no agreement. Like two explorers who cannot decide whether to head out North or South, it was merely agreed that North and South existed. This was heralded as progress by observers seeking at least a ray of hope.

Due to the intransigent positions, by the end of the first week, the Paris2015 text had been all but laid aside. This was because, while that text would be dealt with in meetings in additional February and May 2015, COP20 had to arrive at a decision on how to proceed in Lima. This required agreeing to some minimum rules of procedure and guidelines for progress. The second week, and then some, was devoted to the task of taking a decision in Lima.

Common But Differentiated Responsibilities

Emboldened by the weak leadership of Peru as COP20 President during the first week, developed States addressed this task by renewing their already once failed efforts to circumvent their obligations in the UNFCCC. Their most straight forward attack came in the form of the introduction of language in the COP decision on the Adhoc Durban Platform (ADP) that backed away from the principle of common but differentiated responsibility (CBDR), which is expressly stated in article 3, paragraph 1, of the UNFCCC. Developed states suggested text attempting to qualify this principle as ‘evolving’. One European negotiator explained that this would enable CBDR to be interpreted with more flexibility.

Developing countries, led by the Group of 77 (G77), more than 132 of the United Nation 194 States, maintained that the principle of CBDR had been clearly agreed in the UNFCCC. Furthermore, as is stated in article 4 entitled ‘commitments’, for example, it was further elaborated to mean that wealthier developed countries should provide leadership on climate action by significantly cutting their remissions and ensuring developing countries access to the technology, the capacity building, and new and additional finance for their mitigation and adaptation actions. Developed countries were intransigently unconvinced.

Speaking for about three dozen developing countries on the morning of Saturday, 13 December 2015, while the meeting was still struggling to adopted a text a day after the conference should have concluded, Malaysia explained the problem recognizing that States “started off from different starting points.” Recalling developed countries historical overexploitation of the planet’s atmosphere the Malaysian delegate, supported by the G77 think-tank, the South Centre, said, “Many of you colonized us; so we started from a completely different point and that is why one of the manifestations of differentiation is in the Convention itself.”

Finance and Loss & Damage

One manifestation off differentiation is in decisions that implement the provisions of the UNFCCC obliging developed countries to provide adequate finance to developing countries so that they can continue to develop while making adequate contributions to addressing the adverse consequences of climate change.

The discussion began cordially with was developing countries expression their appreciation to the developed countries for providing 30 billion USD in fast-track finance that they had pledge to provide in 2009 at the COP held in Copenhagen. At the same time, there was concern about how States would come up with the 100 billion USD per year that was pledged by 2020 and every year there after. This concern was accentuated by the fact that many of the most knowledgeable climate finance voices were suggesting that in reality in excess of a trillion USD would be needed annually.

Developed countries were keen to put their faith in the private sector and market mechanisms, even through most also admitted that only a fraction of the these significant sums could be produced without public commitments.

While head to head discussions were being held about how to come up with adequate finances, the UNFCCC Secretariat and the UN Secretary-General were busy applauding the just over 10 billion USD that had been raised for the Green Climate Fund. One had to wonder however, how that would add up to 100 billion a year by 2020 and how the short coming between the 100 billion that is to be pledged and the more than 1 trillion per year that is needed will be covered. Nobody had answers for these questions.

The final decisions on finance adopted on the Saturday after the meeting should have ended, merely called for more discussions about how the required amount of finance would be found by the Standing Committee on Finance, the Green Climate Fund, the Global Environmental Facility, and the COP. These decisions also reiterated the 100 billion USD figure that had already become discredited as an unrealistic appraisal of the funds might have been viable five years ago if adequate action had been taken, when no action had been taken. Like the COP decision, the finance decisions did not admit defeat, but neither did they accomplish a significant step towards resolving the problem of how the differentiation required under the UNFCCC would be supported.

Because of the failure to adequately mitigate their own emissions or to provide adequate resources to developing countries for adaptation, developed countries agreed at COP19 held in Warsaw, to provide assistance to the worst effected countries. This was done by an agreement to create a loss and damage mechanism. The exact nature of the assistance that will be provided remains as ambiguous as the mechanism itself.

At one extreme, developing countries sought to make it a lex specialis mechanism. As such it would be a separate legal regime for dealing with the loss and damage that States, mainly developing States, suffer from the adverse effects of climate change. Such a lex specialis mechanism could extinguish the existing rights to compensation and other types of restitution that effected States already have under international law, abet often without effective means of implementation. Developing States, however, point to its vague mandate as merely providing advice on how States can deal with loss and damage caused by climate change.

Despite the ongoing disagreement, COP20 merely agreed to the makeup of the membership of the Executive Committee of the Loss & Damage Mechanism. It was agreed that it should be balanced between mainly developing and developed countries. What is still left to be seen is what the Loss and Damage Mechanism can actually accomplish.

Real Commitments Forgotten

The final COP20 decision that was hammered out almost two days after the conference was to have ended and after most delegates had already left, said very little about any really commitments on the most important of all issues: how States will limit their greenhouse gas emissions.

Instead of committing to emissions limitations that are more meaningful than those agreed in the deficient Kyoto Protocol or its equally weak Doha amendment, States merely reiterated their intention not to agree to any commitments. The COP20 decision refers to the confusingly named ‘intended nationally determined contributions’ (INDCs) as the standard of action. INDCs are voluntary statements by States about how much they intend to limit their emissions (mitigation) as well as how much they intend to contribute to adaptation, finance, technology transfer and capacity building. But even what would be actually be stated in the INDCs was a point of contention.

Equally contentious was how to ensure that INDCs actually equal what is needed to protect the planet from a climate disaster. While developed States continued to insist on mechanisms to ensure developing countries spend any money provided them correctly, developing States sought assurances that they would actually get adequate money.

In the end, the COP20 decision contains a confusing mix of compromises, double-speak, and often just simple says nothing of any significant meaning.

Planning for Inaction

The fact that COP20 made little or no progress was not by chance. The hype and enthusiasm coming from United Nations officials and some States, especially France and Peru, before COP20 was just a fog obscuring the reality that some States just don’t want to take responsibility for action. It is not a new problem. It has existed for years.

As the Lima COP indicated, many negotiators are ready to give up on an agreement that will honor what science and existing international law, especially the UNFCCC, require to deal with the adverse effects of climate change. Instead they are resigned to adopting a series of face-saving gestures that leave the most vulnerable people in the world increasingly exposed to the harrowing consequences of climate change.

The writing was on the wall as Peru was chosen to host COP20 about eighteen months ago. Initially Venezuela had been the main contender for hosting the COP for South America, the region whose turn it in the regular geographic rotation. Venezuela was a natural choice as it was one of the most outspoken States calling for adequate action on climate change. Its views on the needed action aligned with the views of the overwhelming number of countries, mainly developing countries.

This did not suit the rich and politically powerful developed countries. To get their way they went to Peruvian President Ollanta Humala and convinced him to put forward his country to host COP20. Peru’s relative irrelevance to the last decade of COPs made them a natural choice for developed countries seeking to fight the real battles on their home turf at next year’s COP in Paris.

Peru obliged, but quickly exposed the game being played when some of its diplomats, including those at COP19, did not even know that they were to host COP20. Similarly, Peru’s diplomats at the United Nations in New York and Geneva seemed total bewildered by the mention of the climate change summit.

Western States also preyed on the fact that Peru’s President Ollanta Humala, although in the past a close friend of Venezuela’s strong-minded President Hugo Chavez, had evolved into a leader closer to past Peruvian President Alberto Fujimori, who had been propped up by Western power until he fled the country. Fujimori eventually returned to Peru and is currently serving a 25-year prison sentence for his crimes against humanity. Today Keiko Fujimori, the former right-wing dictator’s daughter and current candidate for President in the 2016 elections, agrees with many of Humala’s policies, which often appear critical of Venezuela’s socialism.

For developed countries, Humala and Peru seemed to provide an adequate setting for maintaining the benefits they had gained by their historic overexploitation of the planet’s atmosphere. And if there was to be a battle at least it would not be a battle they had to fight in hostile territory.

As if to put authoritarian tendencies on display and warn delegates that derogations from the status quo were not welcomed, COP20 was held in a military compound. The military compound was in Lima’s sprawling upscale San Borja neighbourhood and securely guarded by legions of police, military police, and soldiers nestled within the security of barbwire, tank blockades, and security cameras. Even as the COP was taking place military jet and helicopters made fly-overs and a several points, explosive could be heard detonating as delegates negotiated.

To pay for this extravaganza, or merely to profit from it, Lima’s hotels and restaurants often tripled their prices, something is admittedly common at UN Conferences. Even money changers offered about 30% less when exchanging dollars or Euros than they did a few weeks ago. It was not that Peruvian Soles had increased in value, it was just that the UN was in town.

By the time COP20 started the writing was on the wall. Ironically, even United States Secretary of State John Kerry observed in his flying second visit to the COP that “we are still on a course leading to tragedy.” He failed to note that it is few wealthy nations like his own that need to show leadership to in order to avoid tragedy.

It is hard to avoid the conclusion that once again the COP meeting did not inspire the leadership that is necessary for global climate action. It failed to move us closer towards taking adequate action as time was quickly running for many of the most vulnerable people exposed to climate change.

For some it may already be to late. Low lying island States, such as the Maldives are already doomed to disappear under the rising sea tides. Thousands of vulnerable people in countries like the Philippines have already succumb to storms of increasing intensity. And, as the chief negotiator for the 133 States that make up the Group of 77 or the G77, Sudanese Ambassador Lumumba Daping, warned already half a decade ago, unless we act now as many as one hundred million sub-Saharan Africans will die due to the adverse effects of climate change.

When the Ambassador Lumumba Daping stated the grime reality at the Copenhagen Climate Summit in 2009, several wealthy States dismissed as scare mongering. Today, the harrowing scenarios he predicted coming true. Still, the same governments that benefited from almost two centuries of overexploitation of our planet’s atmosphere continue to obstinately defend these ill-gotten gains, even as others have to bear the deadly consequences. It is hard to see how this can be called anything, but a failure.

Dr. Curtis Doebbler is a international human rights lawyer who has been following the climate talks since 2007 and has published several articles in peer reviewed law journals on the responsibility of States for the human rights of victims of climate change.

Curtis FJ Doebbler is a visiting professor of international law at the University of Makeni, Webster University (Geneva) and the Geneva School of Diplomacy and International Relations. He is attending the climate talks in Paris on behalf of International-Lawyers.Org, an UN ECOSOC accredited NGO.